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Making economic policy in South Africa in hard times

Policymakers can no longer ignore the country’s obligations in terms of international, regional and national human rights law.
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The role that human rights should play in South Africa’s economic policy has been the subject of intense controversy and debate over the past year. This, after the finance ministry announced spending cuts in its Medium-Term Budget Policy Statement while the COVID-19 pandemic was ravaging lives and livelihoods.

The statement sets out government’s policy framework for the upcoming budget and its macro-economic plans and goals for the next three years.

The plan is to slash government expenditure over three financial years, from 2021, by R300 billion (about US$21 billion). This will severely affect budgets for education, healthcare, land reform and other social services.

The government said the cuts were needed to prevent a “debt spiral” – borrowing money to meet its commitments. Because South Africa has a sub-investment grade rating, it must pay higher interest on new debt. In addition, GDP had declined by 7% in 2020 due to the impact of COVID-19 on the already struggling economy.

Economists and civil society criticised the plan. They argued that it undermined access to socio-economic rights for many disadvantaged groups. Instead, government should explore other options for mobilising resources.

Socio-economic rights are set out in the bill of rights. They include access to land and housing, healthcare, food and water, social security and education.

The doctrine of non-retrogression

This controversy raises the question of what role human rights should play in economic policy, particularly in challenging economic times. What should guide the weighing of the costs and benefits of different spending priorities?

It is becoming increasingly clear that policymakers can no longer ignore the country’s obligations in terms of international, regional and national human rights law.

My new article in the South African Journal on Human Rights explores the relevance of the doctrine of “non-retrogression” to economic policy decisions that imperil socio-economic rights.

Global human rights bodies developed the doctrine as a tool to evaluate policies which result in a deterioration in the enjoyment of these rights. The doctrine requires states to justify such policies according to certain criteria.

Austerity measures and human rights

In my article, I explore the key features of the doctrine of non-retrogression. I look at whether it can be applied to fiscal consolidation and whether it has been applied in any South African court decisions.

The main finding is that the doctrine forms part of the country’s jurisprudence on socio-economic rights. It should thus guide economic policy and budgetary decisions, to ensure they reflect human rights principles and priorities.

That would help government defend its decisions before international human rights bodies or in domestic courts.

In 2018 the United Nations Committee on Economic Social and Culture Rights criticised the economic policy decisions of the South African government. This committee monitors compliance by states with their obligations under the International Covenant on Economic, Social and Cultural Rights. The committee said the country’s “austerity measures” had cut budgets in health, education and other public services. It expressed concern that the cuts would worsen inequalities and reverse gains made.

The UN body cited its non-retrogression doctrine and recommended that both the executive and legislature take human rights into account when deciding the budget.

It refined key elements of this doctrine in response to the austerity measures adopted during the global financial crisis of 2008-2009. Since then, states have had to show that certain criteria have been met.

They must show that:

  • retrogressive measures are adopted only as a last resort
  • alternatives were comprehensively examined
  • those who are disadvantaged and vulnerable will not be adversely affected
  • social protection programmes are in place so that people’s essential basic needs are not compromised
  • there was genuine public participation in relevant decisions.

Courts and the doctrine of non-retrogression

This retrogressive measures doctrine is receiving increased attention in South African courts. For example, the North Gauteng High Court relied on it in its judgment on the suspension of the National School Nutrition Programme during the lockdown last year. The court said the suspension violated children’s right to basic education and basic nutrition. It ordered the government to develop a plan to ensure that every learner received a daily school meal – regardless of whether they were attending school or studying from home.

The doctrine was also cited in another judgment in which the court found that the withdrawal of government subsidies for providers of early childhood education was unconstitutional.

The Constitutional Court has previously ruled that courts must take the availability of resources into account in judging whether government has taken reasonable measures to meet its socio-economic rights duties. It has also said that the government must show that its resource allocation decisions considered human rights.

For example, the court has said that organs of state cannot rely on the excuse that they have failed to plan and budget appropriately for the fulfilment of their constitutional duties.

Courts should ideally not intervene directly in matters of economic policy and spending priorities. It is primarily the responsibility of the executive and legislature to ensure that budgetary decisions take human rights into account. But, when they fail to do so, courts have a constitutional responsibility to protect these constitutional rights.

Public participation

How should the executive and legislature ensure that human rights are taken into account in economic policy decisions?

One way is to conduct human rights impact assessments before undertaking economic reforms, as recommended by the UN. Another is creating a policy framework for thorough public participation in economic policy and budgetary decisions.

Public participation is vital as it can highlight the impact of policies on vulnerable and disadvantaged groups. It can also suggest ways of avoiding or mitigating such impacts.

The 2019 Open Budget survey ranked South Africa highly in terms of the transparency of its budget process, but lowest in terms of public participation. Civil society organisations have complained that the budgetary process is inaccessible to poor communities. They say it does not provide meaningful opportunities for engagement.

Without resources, human rights are no more than words on paper. South Africa needs a proper policy and legislative framework for ensuring that human rights principles guide economic decision-making, particularly in hard times.The Conversation

Sandra Liebenberg, Distinguished Professor and H F Oppenheimer Chair in Human Rights Law, Stellenbosch University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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China, with its “less than perfect human rights record” lifted 1.3 billion people out of poverty in one generation. South Africa, with its perfect bill of rights, dumps a growing number of unemployed people in poverty, with no hope of relief. Maybe the fact that democracy allows some people to influence economic policy, is the biggest threat to their own survival. The right to vote turns collectivists into their own worst enemies.

This is the basics of politics – if you allow people who do not own property to make laws that expropriate the property of those who do, then the balance between property owners and communalists determines the economic future and social cohesion of the nation. If the majority own property, the nation will thrive. If the majority are collectivist, the nation will implode.

This implies that the South African constitution basically guarantees economic decay, poverty, and hunger. Maybe our solution is less human rights and more property rights. China got this right.

Sensei – it strikes me that the foundation upon which you build your elegant commentary on contemporary SA society – is your interpretation of the SA Constitution. I quote – “Let’s consider the relative value of our beautifully elegant and sophisticated constitution for a moment. It is absolutely wasted upon the communalist part of society. They simply abuse it to escape the legal consequences of their actions and to demand free stuff from the rest of society. The ANC makes a mockery of the constitution.” While I totally agree that the ANC abuses the constitution, surely this is what political parties will do if the constitution is so poorly written so as to allow them ? To me the SA constitution for all its “elegance” – brings to mind the quote “A Monkey in silk is a Monkey no less” Perhaps this is best illustrated by the Constitution’s definition of its “fundamental purpose”. Namely “Transition and Transformation”. These two conflicting themes were always destined to clash and the interpretation thereof – abused. No more so than in a chronically dysfunctional society like SA was / is pre & post 1994. I simply cannot understand how the Constitution’s “esteemed” authors failed to see this inevitability. What were they smoking ? More importantly, it is not clear to me how anyone can now correct such an obviously fundamental flaw in the very foundation of our young country. Tragically, as we have seen with Surfside, a poorly laid foundation invariably has catastrophic results…

Thank you for a very thought-provoking comment. I think the constitution was only intended to buy time, not to solve the inherent conflicting issues in society. Considering the investment outflows, brain drain, and externalization of assets over the last decade, the constitution has served its purpouse. It was not intended to benefit the poor, because their mindset and voting habits make their situation unsalvageable. It was intended to protect the wealthy.

Yes, millions are desperately poor and need urgent relief.

58% of all tax income goes to 2.5% of the population – the ANC aligned government workers.

Government employees are eating the poor peoples lunch.

What about children’s rights, professor?

Millions of people in this country have children they cannot afford – not a word is said about that by the politicians, academics and women’s organizations.

This academic is off her rocker!

A blind (and seemingly narcissistic) obsession with “rights” to the complete exclusion of the NECESSARY co-existing “social responsibilities” is a GUARANTEED recipe for a doctrine that wilfully ignores the opposing inconvenience of reality – CANNOT work.

The notion that because once a government has introduced “a right”, this CANNOT be retracted (or even reduced!) is plain absurd.

Think about applying this principle in your own household. Your “right to live your current lifestyle” depends WHOLLY on your current fortunes.

There is NO Devine ordination about it!

Yes, you would certainly love it to be an immutable rule that any change in your family circumstances must always be a step up.

But the reality is that if you lose your job, suffer sudden ill-health, or some other catastrophe, then “your rights to your dolden future” EVAPORATE OVERNIGHT!

And so it is with governments that allow the root problem to grow to the extent that they cannot afford “rights” that were ALWAYS actually “indulgent luxuries” in the first place.

Stellenbosch University is rapidly going downhill by encouraging its academics to propagate unhinged theories which blissfully (and wilfully ignore the contraindication challenges of actual reality.

Sensei – I agree with your statement that that the constitution was cynically designed to buy time & protect the wealthy. Betrayal comes in many forms, but no more treacherous as when you calculatedly betray your own people (white & black) for monetary gain. I fear that recent events in KZN are but a picnic for what portends when the penny finally drops & retribution begins in earnest. Sadly, the architects of this tragedy, will have long gone along with their ill-gotten gains & false awards. One can only hope that when the History of SA is written, these men will be recognised for the poisoned chalice they left behind….

Agreed; seems to me much of public opinion and policy is formed by self interest and people who cannot do basic arithmetic.

End of comments.

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